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Published online by Cambridge University Press: 02 January 2018
The issue addressed here is that of understanding and giving meaning to mens rea concepts in the criminal law; I look in particular at intention and recklessness. The point made is that the controversy surrounding the proper meaning and understanding of these two concepts - a dispute about their appropriate contours - cannot be solved in the manner so far assumed. It follows that it is a vain hope to expect clear, unambiguous and non-controversial formulations of these concepts.
The argument has a three-fold structure. First, it is suggested that we are locked into this controversy whether (i) we insist that our mem rea concepts do, and should, bear the same meaning they have in ordinary non-legal discourse; or (ii) we insist that such concepts do, and should, bear a technical meaning, distinct from whatever ordinary meaning they may have, which is better suited to the requirements of the criminal law. These are the two traditional strategies used in attempting to solve any controversy about the contours of mens rea concepts and I will show how they are potentially controversial.
The author wishes to thank Dr Andrew Ashworth and Martin Wasik for their help and advice.
1. The problem is well stated by Fletcher, G in Rethinking Criminal Law (Boston, Little, Brown 1978); p 400 Google Scholar. My approach to it differs, however, in many ways.
2. This dispute seems to track that which existed in analytic philosophy: see R Rorty (ed), The Linguistic Turn (Chicago, v Chic Press, 1967);, Introduction, pp 1524.
3. (1981) 1 All ER 961.
4. (1981); 1 All ER 961 at 969: G Williams in ‘Oblique Intention’ (1987) CLJ 417 thinks there are ‘sound reasons’ for distinguishing the ordinary meaning of intention from its technical meaning. These reasons are not articulated.
5. ‘Consistency, Communication and Codification: Reflections on Two Mans Rea Words’, p 58, in Glazebrook (ed), Reshaping the Criminal Law (London, Stevens, 1978); see also G Williams, supra, at p 426. Needless to say, the policy arguments noted here are left shrouded in mystery.
6. See T Honderich, Punishment: The Supposed Justifications (Harmondsworth, Penguin, 1984); p 15 — punishment as infliction of distress; Hart, H L A , Punishment and Responsibility (Oxford, OUP, 1968); p 4.Google Scholar
7. Some have sought to define crime in the same non-controversial, value neutral way. See, eg, P Glazebrook, ‘The Plea of Necessity in English Law’, (1972); 30 CLJ 87, 108; G Williams, ‘The Definition of Crime’, 8 CLP 107, 130; and Fletcher, op cit, pp 396 – 401.
8. R Robinson, Definition (Oxford, OUP, 1962); p 60.
9. Griew, op cit, p 57.
10. Robinson, op cit, p 63.
11. Robinson, supra..
12. (1975); AC 55.
13. HC 270.
14. The mens rea formulations in Report No 143, contained in clause 22 of the Draft Criminal code, are a combination of stipulative and ordinary use definitions.
15. See, eg, N MacCormick, Legal Reasoning and Legal Theory (Oxford, Clarendon Press, 1978); p 68, especially fn 23.
16. (1981); 1 All ER 961 at 964 and 966.
17. ‘Intent: A Reply’ (1978); Crim LR 19. See also Lord R Goff, ‘The Mental Element in Murder’, (1988) 104 LQR 30, 46.
18. Professor Griew would deny this Ibid, p 58. Our difference is an empirical one, I think, and can be solved.
19. J Bentham, Principles of Morals and Legislation (London, Methuen, 1982); p 160, paras 7 and 8; Fuller, L, The Morality of Law (New Haven, Yale UP, revised edition, 1969) ch 2.Google Scholar
20. J L Austin, ‘A Plea for Excuses’, in his Philosophical Papers (Oxford, OUP, 1961); p 133. For Austin, ordinary language and common sense are merely different sides of the same coin (Ibid). Curiously, Professor Williams sees a significant disjunction between the two: supra, n 3, at p 419, 423 and 425.
21. See A Ashworth, Sentencing and Penal Policy (London, Weidenfeld and Nicolson, 1983); ch 4.
22. ‘Essentially Contested Concepts’, Procs of Aristotelian Soc, vol 56 1955 – 56.
23. For an in depth account of the notion of intention and its various complexities see G E M Anscombe Intention (Blackwell, Oxford, 1979);.
22. See, eg, Smith and Hogan, Criminal Law (London, Butterworths, 5th edn, 1983); pp 52 – 56.
25. Mohan (1975); 1 All ER 193; Millard and Vernon (1987) Crim LR 393.
26. For an interesting analysis see R A Duff, ‘Intention, Responsibility and Double Effect’ (1982); 32 Philosophical Quarterly 1.
27. The notion of family resemblances is, of course, Wittgenstein's; the quotation is from his Philosophical Investigations (Oxford, Blackwell, 1974) 32 e. See also J Hunter, Understanding Wittgenstein (Edinburgh, Edinburgh UP 1985); ch 5.
28. Smith and Hogan, Ibid; A White, Grounds of Liability (Oxford, OUP, 1985); pp 6M6.
29. (1985); 1 All ER 1025.
30. (1986); 1 All ER 641.
31. (1986); 3 All ER 1.
32. (1985); 1 All ER 1025 at 1038, per Lord Bridge. See also the remarks of Lord Scarman in Shanklin, note 52 below, and Lord Chief Justice Lane in Nedrick (1986) 3 All ER I at 3.
33. See Lord Bridge in Moloney, ibid, at 1037.
34. Smith and Hogan, Ibid, p 52 and pp 70 – 81.
35. (1981); 1 All ER 961; Smith (1981) Crim LR 392; Williams ‘Recklessness Redefined’ (1981) CLJ 252.
36. (1981); 1 All ER 974.
37. (1982); 2 All ER 591.
38. Robilliard and McEwan, ‘Recklessness: The House of Lords and the Criminal Law’ (1981); 1 LS 267, 267–270; R A Duff, ‘Caldwell and Lawrence: The Retreat from Subjectivism’, 3 OJLS 77, 78–85.
39. (1975); AC 55.
40. Supra, note 29.
41. Supra, note 30.
42. Supra, note 31. See also R A Duff, ‘The Obscure Intentions of the House of Lords’ (1986); Crim LR 771, esp 771–774; G Williams, supra n 4, pp 43M35.
43. See Lord Hailsham in Hyam, supra, at 73; Lord Diplock Ibid, 86.
44. Lord Hailsham, Ibid 74.
45. Viscount Dilhorne, Ibid 82.
46. Lord Cross, Ibid, 97; Lord Kilbrandon, Ibid, 98 and Lord Diplock, Ibid, 86, speak of ‘likely consequences’.
47. Lord Diplock in Hyam at 86 and in Lemon (1979); 1 All ER 898. Viscount Dilhorne in Hyam at 82; Lord Cross Ibid, at 96.
48. In ‘intent’, (1978); Grim LR 5; cf Archbold, 40th edn, para 1441 a; 41st edn, para 17–13.
49. (1977); Crim LR 349.
50. (1985); Crim LR 379.
51. (1985); 1 All ER 1025.
54. (1986); 1 All ER 641 at 649.
53. (1986); 3 All ER 1 at 3–4.
54. Ashworth, supra, note 21.
55. For a denial of any significant link between punishment and moral responsibility see J Bogart ‘Punishment and the Subordination of Law to Morality’, (1987); 7 OJLS 421. Note also Lord Goff s curious references to the feelings of judges in criminal cases, supra, note 17, at pp 36, 38, 45 and 46.
56. (1981); 1 All ER 961.
57. (1981); 1 All ER 961 at 965.
58. Ibid.
59. See Duff, supra, note 33, at p 90.
60. This is a statement of Hart's responsibility principle: supra, note 6, p 152.
61. M Bayles, ‘Character, Purpose, and Criminal Responsibility’, (1982); Law and Philosophy 1, 10.
62. Bayles, Ibid.
63. Bayles, Ibid, pp 10 – 11.
64. For a statement of the deterrent theory of punishment see, inter alia, T Honderich, supra, n 6, ch 3.
65. G Fletcher, ‘The Theory of Criminal Negligence’ (1971); 119 v Pa L Rev 41 7.
66. P Strawson, ‘Freedom and Resentment’, in Watson (ed), Free Will (Oxford, OUP, 1982); p 67.
67. See Honderich, note 6 above. ch 2.
68. B Williams in Smart and Williams, Utilitarianism: For and Against (Cambridge, CUP, 1973); p 84.
69. Modern utilitarians speak the language of preference satisfaction as opposed to happiness or utility: see Sen and Williams, , Utilitarianism and beyond (Cambridge, CUP, 1982)Google Scholar; Introduction, esp p 11.
70. Examples would be Griew. op cit; A Smith, ‘The Case for a Code’ (1986); Crim LR 285.
71. See note 15 supra..